Hunter-Reed v. City of Houston

• Citation: 244 F.Supp.2d 733
• Decision Date: 02 January 2003
• Docket Number: NO. CIV.A. H-02-1296.,CIV.A. H-02-1296.
• Parties: Sonya HUNTER-REED, plaintiff, v. CITY OF HOUSTON, defendant.
• Court: U.S. District Court — Southern District of Texas

244 F.Supp.2d 733

Sonya HUNTER-REED, plaintiff, v. CITY OF HOUSTON, defendant.

NO. CIV.A. H-02-1296.

United States District Court, S.D. Texas.

January 2, 2003.

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Mark e. Roberts, Houston, TX, for plaintiff.

DONALD J. Fleming, city of Houston legal dept., Houston, TX, for defendant

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is defendant city of Houston's ("the city") motion to dismiss (# 5), as converted by the court to a motion for summary judgment to allow consideration of materials outside the pleadings. The city seeks dismissal of plaintiff Sonya Hunter-Reed's ("hunter-reed") claims of race discrimination, racially hostile work environment, and retaliation under title VII of the civil rights act of 1964 ("title VII"), 42 U.S.C, §§ 2000E-2000H-6. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment is warranted.

I. BACKGROUND

Hunter-reed, an African-American female, has been employed by the city since 1984. She alleges that in 1998, she worked as a senior buyer, a pay grade 22 position. Hunter-Reed claims, however, that she was paid only at the level of pay grade 16. She maintains that she repeatedly asked for reclassification of her pay grade, but she was not given an opportunity to discuss an increase with her superiors. According to hunter-reed, non-African-Americans working outside of their classifications received commensurate pay grade increases.

Hunter-reed further asserts that since January 2000, she has been subjected to a racially hostile work environment because her division manager, harry Stafford ("Stafford"), shared racially motivated jokes from his desk calendar with her on a daily basis. In addition, she contends that on July 26, 2000, she applied for the position of office service manager (pin # 78754), but a less qualified, non-African-American. was selected for the position. Hunter-reed maintains that on November 1, 2000, she was reassigned to a position with a lesser pay grade.

According to hunter-reed, she also has been retaliated against for engaging in protected activity, which includes, but is not limited to, filing a prior charge of discrimination against the city. She claims that the composition and conduct of a selection panel convened to select a senior buyer (job announcements # 79909 and # 81007) was devised to deny her the promotion. She further maintains that counseling memoranda issued to her by Stafford in February 2001 were retaliatory in nature and intended to make her ineligible for promotion. Moreover, hunter-reed claims that she was the victim of retaliation when she was transferred to work under the supervision of Dorsey Bustamante.

on November 15, 2000, hunter-reed filed a charge of employment discrimination with the equal employment opportunity commission ("EEOC"), alleging race discrimination and retaliation. On November 16, 2001, the EEOC sent hunter-reed, by certified mail, a notice of right to sue addressed to 5807 larch leaf lane, Richmond, Texas 77469. In December 2001, hunter-reed called the EEOC to inquire about the issuance of a right-to-sue letter and was informed that such a letter had been sent to her on November 16, 2001. On January 9, 2002, the EEOC sent hunter-reed a letter bearing the same address as above, advising her of the following:

your copy of the notice of right to sue was mailed to you on November 16, 2001 by certified mail. However, you failed to pick this letter up from the post office and it has been returned to this office.

please come by our office at 1919 smith, sixth floor, and ask for [Dinorah g. Gonzales, office automation assistant]. (emphasis in original). Hunter-Reed claims that she went to the EEOC office on January 9, 2002, and picked up her right-to-sue letter. She signed a copy of the January 9, 2002, EEOC letter and dated her signature January 11, 2002. Hunter-Reed instituted this action on April 5, 2002.

in her complaint, hunter-reed asserts claims of racial discrimination, racially hostile work environment, and retaliation under title VII. The city seeks dismissal of her claims pursuant to rule 12(b)(6) of the federal rules of civil procedure. The city argues under rule 12(b)(6) that hunter-Reed fails to state a claim upon which relief can be granted because her title VII claims are time-barred, asserting that she failed to file suit within ninety days after receipt of her notice of right to sue. Because matters outside the pleadings were relied upon by the parties, which appear to be necessary for the resolution of the City's motion, by order dated July 17, 2002, the court converted the City's motion to dismiss to a motion for summary judgment and invited the submission of additional materials by the parties.

II. ANALYSIS

A. Summary judgment standard

Rule 56(c) of the federal rules of civil procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." F ED. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.1999); Marshall v. East Carroll Parish Hosp. Serv. Dist, 134 F.3d 319, 321 (5th Cir.1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir. 1997), cert, denied, 523 U.S. 1073, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). Where a defendant moves for summary judgment on the basis of an affirmative defense and, thus, bears the ultimate burden of persuasion, "it must adduce evidence to support each element of its defenses and demonstrate the lack of any genuine issue of material fact with regard thereto." Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999), cert, denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000) (citing Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir.), cert, denied, 522 U.S. 915, 118 S.Ct. 299, 139 L.Ed.2d 231 (1997)); see Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). A material fact is one that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, All U.S. at 248, 106 S.Ct. 2505. The moving parties, however, need not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., All U.S. at 322-23, 106 S.Ct. 2548; Anderson, All U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Rushing, 185 F.3d at 505; Colson, 114 F.3d at 506; Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)); see Reeves, 530 U.S. at 150, 120 S.Ct. 2097; Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert, denied, 525 U.S. 1067, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999); Hart v. O'Brien, 121 F.3d 424, 435 (5th Cir.1997), cert, denied 525 U.S. 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 411 U.S. at 255, 106 S.Ct. 2505; Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990); see Christopher Vill. Ltd. P'ship v. Retsinas, 190 F.3d 310, 314 (5th Cir.1999); Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir.1998); Marshall, 134 F.3d at 321. The evidence is construed "in favor of the nonmoving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999); accord Little, 37 F.3d at 1075 ("[w]e do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.") (emphasis in original) (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

Furthermore, "`only reasonable inferences can be drawn from the evidence in favor of the nonmoving party.'" Eastman Kodak Co. v. Image Tech, Servs., Inc., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (emphasis in original) (quoting H.L. Hayden Co. of...